City of Chicago v. Sessions

THE CITY OF CHICAGO, Plaintiff,v.JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States, Defendant.

MEMORANDUM OPINION AND ORDER

Harry
D. Leinenweber, Judge

This
case involves the intersection between federal immigration
policies and local control over policing. Defendant Jefferson
Beauregard Sessions III, the Attorney General of the United
States, seeks to impose new conditions on an annual federal
grant relied on by the City of Chicago for law enforcement
initiatives. These conditions require additional cooperation
with federal immigration officials and directly conflict with
Chicago's local policy, codified in its Welcoming City
Ordinance, which restricts local officials' participation
in certain federal immigration efforts. Chicago claims its
policies engender safer streets by fostering trust and
cooperation between the immigrant community and local police.
Chicago's policies are at odds with the immigration
enforcement priorities and view of public safety espoused by
the Attorney General.

Against
this backdrop, the City of Chicago claims that these new
conditions are unlawful and unconstitutional, and implores
this Court to grant a preliminary injunction enjoining their
imposition. For the reasons described herein, the Court
grants in part, and denies in part, the City of Chicago's
Motion for a Preliminary Injunction.

I.
FACTUAL BACKGROUND

A.
The Edward Byrne Memorial Justice Assistance Grant
Program

The
federal grant at issue is awarded by the Edward Byrne
Memorial Justice Assistance Grant Program (the “Byrne
JAG grant”). See, 34 U.S.C. § 10151
(formerly 42 U.S.C. § 3750). Named after a fallen New
York City police officer, the Byrne JAG grant supports state
and local law enforcement efforts by providing additional
funds for personnel, equipment, training, and other criminal
justice needs. See, 34 U.S.C. § 10152 (formerly
42 U.S.C. § 3751). The Byrne JAG grant is known as a
formula grant, which means funds are awarded based on a
statutorily defined formula. See, 34 U.S.C. §
10156 (formerly 42 U.S.C. § 3755). Each state's
allocation is keyed to its population and the amount of
reported violent crimes. Ibid. The City of Chicago
(the “City”) has received Byrne JAG funds since
2005, including $2.33 million last year on behalf of itself
and neighboring political entities. (See, Decl. of
Larry Sachs, ¶¶ 3, 11-12.) The City has used these
funds to buy police vehicles and to support the efforts of
non-profit organizations working in high crime communities.
(See, Id. ¶ 4.)

B.
New Conditions on the Byrne JAG Grant

In late
July 2017, the Attorney General announced two new conditions
on every grant provided by the Byrne JAG program.
(See, Byrne JAG Program, FY 2017 Local Solicitation,
Ex. 11 to Def.'s Br.) The two new conditions require,
first, that local authorities provide federal agents advance
notice of the scheduled release from state or local
correctional facilities of certain individuals suspected of
immigration violations, and, second, that local authorities
provide immigration agents with access to City detention
facilities and individuals detained therein. Additionally, a
condition on Byrne JAG funds was added last year that
requires the City to certify compliance with a federal
statute, 8 U.S.C. § 1373, which prohibits local
government and law enforcement officials from restricting the
sharing of information with the Immigration and
Naturalization Service (“INS”) regarding the
citizenship status of any individual. (See, FY 2016
Chicago/Cook County JAG Program Grant Award, dated Sept. 7,
2017, at 2-13, Ex. C to Decl. of Alan Hanson (“Hanson
Decl.”).) The condition to certify compliance is also
imposed on 2017 Byrne JAG funds. (See, Byrne JAG
Program, FY 2017 Local Solicitation, Ex. 11 to Def.'s
Br.) The exact text of the three conditions is as follows:

(1) A State statute, or a State rule, -regulation, -policy,
or -practice, must be in place that is designed to ensure
that, when a State (or State-contracted) correctional
facility receives from DHS a formal written request
authorized by the Immigration and Nationality Act that seeks
advance notice of the scheduled release date and time for a
particular alien in such facility, then such facility will
honor such request and -- as early as practicable -- provide
the requested notice to DHS.

(2) A State statute, or a State rule, -regulation, -policy,
or -practice, must be in place that is designed to ensure
that agents of the United States acting under color of
federal law in fact are given to access any State (or
State-contracted) correctional facility for the purpose of
permitting such agents to meet with individuals who are (or
are believed by such agents to be) aliens and to inquire as
to such individuals' right to be or remain in the United
States.

(3) The applicant local government must submit the required
‘Certification of Compliance with 8 U.S.C. 1373'
(executed by the chief legal officer of the local
government).

(Byrne JAG Program Grant Award for County of Greenville,
Special Conditions (“Byrne Conditions”),
¶¶ 53, 55-56, Ex. A to Hanson Decl.; see
also Hanson Decl., ¶ 6.) These conditions will be
referred to respectively as the notice condition, the access
condition, and the compliance condition. The City claims all
three conditions are unlawful and unconstitutional, even
though it acquiesced to the compliance condition when
accepting the 2016 Byrne JAG funds.

The
compliance condition requires the City to certify compliance
with Section 1373. (Byrne Conditions ¶ 53.) Section 1373
is titled “Communication between government agencies
and the Immigration and Naturalization Service” and
provides as follows, 8 U.S.C. § 1373:

(a) In General

Notwithstanding any other provision of Federal, State, or
local law, a Federal, State, or local government entity or
official may not prohibit, or in any way restrict, any
government entity or official from sending to, or receiving
from, the Immigration and Naturalization Service information
regarding the citizenship or immigration status, lawful or
unlawful, of any individual.

(b) Additional Authority of Government
Entities

Notwithstanding any other provision of Federal, State, or
local law, no person or agency may prohibit, or in any way
restrict, a Federal, State, or local government entity from
doing any of the following with respect to information
regarding the immigration status, lawful or unlawful, of any
individual:

(1) Sending such information to, or
requesting or receiving such information from, the
Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any
other Federal, State, or local government entity.

(c) Obligation to Respond to Inquiries

The Immigration and Naturalization Service shall respond to
an inquiry by a Federal, State, or local government agency,
seeking to verify or ascertain the citizenship or immigration
status of any individual within the jurisdiction of the
agency for any purpose authorized by law, by providing the
requested verification or status information.

C.
The City's Welcoming Ordinance

Chicago's
Welcoming City Ordinance (the “Ordinance”) is a
codified local policy that restricts the sharing of
immigration status between residents and police officers.
See, Chicago, Illinois, Municipal Code §
2-173-005 et seq. The explicit purpose of the
Ordinance is to “clarify what specific conduct by City
employees is prohibited because such conduct significantly
harms the City's relationship with immigrant
communities.” Id. § 2-173-005. The
Ordinance reflects the City's belief that the
“cooperation of the City's immigrant communities is
essential to prevent and solve crimes and maintain public
order, safety and security in the entire City” and that
the “assistance from a person, whether documented or
not, who is a victim of, or a witness to, a crime is
important to promoting the safety of all its
residents.” Ibid. Since the mid-1980s, the
City has had in place some permutation of this policy,
typically in the form of executive orders that prohibited
City agents and agencies from requesting or disseminating
information about individuals' citizenship.
(See, Executive Order 85-1, 89-6, Exs. A-B to
Pl.'s Br.) First codified in Chicago's Municipal Code
in 2006, the Ordinance was augmented in 2012 to refuse
immigration agents access to City facilities and to deny
immigration detainer requests unless certain criteria were
met. See, Chicago, Illinois Municipal Code §
2-173-005. An immigration detainer request is a request from
Immigration and Customs Enforcement (“ICE”),
asking local law enforcement to detain a specific individual
for up to 48 hours to permit federal assumption of custody.

The
Ordinance prohibits any “agent or agency” from
“request[ing] information about or otherwise
investigat[ing] or assist[ing] in the investigation of the
citizenship or immigration status of any person unless such
inquiry or investigation is required by Illinois State
Statute, federal regulation, or court decision.”
Id. § 2-173-020. It goes on to forbid any agent
or agency from “disclos[ing] information regarding the
citizenship or immigration status of any person.”
Id. § 2-173-030. The Ordinance specifically
characterizes “[c]ivil immigration enforcement
actions” as a “[f]ederal responsibility, ”
and provides as follows:

a. Except for such reasonable time as is necessary to conduct
the investigation specified in subsection (c) of this
section, no agency or agent shall:

1. arrest, detain or continue to detain a person solely on
the belief that the person is not present legally in the
United States, or that the person has committed a civil
immigration violation;

2. arrest, detain, or continue to detain a person based on an
administrative warrant entered into the Federal Bureau of
Investigation's National Crime Information Center
database, or successor or similar database maintained by the
United States, when the administrative warrant is based
solely on a violation of a civil immigration law; or

3. detain, or continue to detain, a person based upon an
immigration detainer, when such immigration detainer is based
solely on a violation of a civil immigration law.

b.

1. Unless an agency or agent is acting pursuant to a
legitimate law enforcement purpose that is unrelated to the
enforcement of a civil immigration law, no agency or agent
shall:

A. permit ICE agents access to a person being detained by, or
in the custody of, the agency or agent; B. permit ICE agents
use of agency facilities for investigative interviews or
other investigative purpose; or C. while on duty, expend
their time responding to ICE inquiries or communicating with
ICE regarding a person's custody status or release date.

2. An agency or agent is authorized to communicate with ICE
in order to determine whether any matter involves enforcement
based solely on a ...

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